Citation Nr: 0419696
Decision Date: 07/21/04 Archive Date: 08/04/04
DOCKET NO. 97-14 894 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Jeany Mark, Esquire
ATTORNEY FOR THE BOARD
J. M. Ivey, Counsel
INTRODUCTION
The veteran had active service from August 1966 to August
1968.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a November 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, Puerto Rico, in which service connection for PTSD
was denied.
In October 2002 the Board denied the veteran's claim of
entitlement to service connection for PTSD. The veteran
appealed to the United States Court of Appeals for Veterans
Claims (Court). In an October2003 Order, the Court vacated
the Board's October 2002 decision for the Board to consider
previously untranslated Spanish documents.
FINDING OF FACT
PTSD is not currently shown.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated in service. 38
U.S.C.A. §§ 1110, 5100, 5102, 5103A, 5107(b) (West 1991 &
Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Service connection for PTSD
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. § 1110 (West 1991 & Supp. 2002); 38 C.F.R.
§§ 3.303, 3.304 (2003). In addition, service connection may
be granted for any disease diagnosed after discharge, when
all of the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2003).
Establishing service connection for PTSD requires (1) a
current medical diagnosis of PTSD in accordance with 38
C.F.R. § 4.125(a); (2) credible supporting evidence that the
claimed in-service stressor actually occurred; and (3)
medical evidence of a causal nexus between current
symptomatology and the specific claimed in-service stressor.
See 38 C.F.R. § 3.304(f) (2003); Anglin v. West, 11 Vet. App.
361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357
(1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi
v. Brown, 10 Vet. App. 307 (1997).
Despite the indications of PTSD, discussed below, the Board
finds that the preponderance of the evidence is against the
claim that the veteran has PTSD. In particular, the Board
finds that the examination by a board of three psychiatrists
is highly probative evidence, which shows that the veteran
does not have PTSD. In July 1994 a board of three
psychiatrists examined the veteran. Their diagnosis was
anxiety disorder, not otherwise specified and alcohol abuse.
In October 1969, the diagnosis was anxiety reaction, as it
was in April 1980. In December 1983, a physician set forth a
diagnosis of schizophrenia, undifferentiated type, with
instructions to rule out PTSD. A January 1984 discharge
report sets forth a diagnosis of PTSD. A November 1984 VA
examination report sets forth an Axis I diagnosis, however,
of only "Features of a Post-Traumatic Stress Disorder." More
recently, a July 1994 VA examination resulted in an Axis I
diagnosis of anxiety disorder. The most recent VA
examination suggests that the veteran does not manifest PTSD.
The July 1994 examination report is the most recent
examination documented in the claims file, and, therefore, as
to the nature of any current disorder, it is more probative
than other reports also contained in the claims file.
Earlier evidence, furthermore, does not consistently set
forth a diagnosis of PTSD, and the July 1994 diagnosis, is
consistent with diagnoses set forth in 1969 and 1980.
The Board therefore finds that the probative value of the
evidence indicating that the veteran has PTSD is far
outweighed by the contrary evidence of record, which shows
that the veteran does not have PTSD. As the preponderance of
the evidence is against the claim that the veteran has PTSD,
the veteran's claim for service connection for PTSD fails on
the basis that all elements required for such a showing have
not been met. Accordingly, service connection for PTSD must
be denied.
There were documents in the file that were in Spanish and
that were not translated to English until after the Board's
October 2002 decision. This was the reason for the Court's
order to vacate the Board's October 2002 decision. The Board
has now reviewed those previously untranslated documents.
The previously untranslated documents were the veteran's own
written contentions concerning his claim. In September 1980
the veteran solicited an evaluation of his nervous and sight
conditions. He informed the RO that his records were at the
VA hospital and that he was receiving treatment. In February
1981 the veteran wrote that he was receiving treatment at the
VA hospital, that he was exposed to "Agent Orange" and that
his nervous condition continued to deteriorate. In December
1982 the veteran wrote that his disabilities had worsened and
that he was hospitalized at the VA hospital, in San Juan, the
Commonwealth of Puerto Rico. He wrote that his disabilities
prevent him from working. These written statements were not
particularly pertinent to the issue of entitlement to service
connection for PTSD. Rather they were redundant of the
information already of record and consideration of the
previously untranslated documents does not warrant
entitlement to service connection for PTSD.
The veteran's counsel argued that the lay statements
submitted by the veteran's fellow service members verified
that the veteran's alleged stressors occurred. The veteran's
counsel contends that the Board should attempt to verify that
the authors of the two lay statements served with the veteran
in Vietnam. However, in light of the Board's determination
that the preponderance of the evidence is against the claim
that the veteran has PTSD, the issues of participation in
combat, and whether verified stressors exist, are
"downstream" issues which will not be further discussed. See
Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998) (holding that
under 38 U.S.C.A. § 1110, the veteran must submit proof of a
presently existing disability resulting from service in order
to merit an award of compensation).
II. Duty To Assist
The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). In addition, VA
has published regulations to implement the provisions of the
VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2003)).
There has been a significant amount of analysis pertaining to
the effective date, the scope, and the remedial aspects of
the VCAA. See, e.g., Quartuccio v. Principi, 16 Vet. App.
183 (2002); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir.
2003); Paralyzed Veterans of America v. Secretary of Veterans
Affairs, 345 F.3d 1344 (Fed. Cir. 2003) (but see Public Law
No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003);
Conway v. Principi, 353 F.3d 1359 (Fed. Cir. 2004); Pelegrini
v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I), withdrawn
and reissued, ___ Vet. App. ___, No. 01-944 (June 24, 2004)
(Pelegrini II). See also VAOPGCPREC 11-00 (Nov. 27, 2000);
VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 8-2003 (Dec.
22, 2003); VAOPGCPREC 1-2004 (Feb. 24, 2004).
Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal. In
Pelegrini II, cited above, the United States Court of Appeals
of Veterans Claims (Court) stated that, under the VCAA,
[t]he Secretary must provide notice . . . that
informs the claimant of any information and
evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to
provide, and (3) that the claimant is expected to
provide. Furthermore . . . , in what can be
considered a fourth element of the requisite
notice, VA must "also request that the claimant
provide any evidence in the claimant's possession
that pertains to the claim." 38 C.F.R. §
3.159(b)(1); see 38 U.S.C. § 5103A(g) . . . .
Pelegrini II, supra, slip op. at 11.
The Board is further aware that much of the majority opinion
in Pelegrini II, which includes the portion quoted
immediately above, has been characterized as, "at best,
dictum." Id., slip op. at 23 (Ivers, J., concurring in part
and dissenting in part). In any event, considering all the
foregoing authorities as applicable to this case, the Board
finds that the requirements of the VCAA have been satisfied
in this matter.
VA satisfied this duty by means of letter to the veteran from
the RO dated in March 2002. Specifically, in the March 2002
RO letter the RO informed the appellant of the following: 1.)
What must the evidence show to establish entitlement; and 2.)
What the appellant could do to help with the claim.
Therefore, VA has no outstanding duty to inform the appellant
that any additional information or evidence is needed.
A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. In November 1994, prior to the enactment of the
VCAA, the RO initially denied the claim on appeal. The
veteran was not provided VCAA notice until March 2002. Here,
the Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless error. There is no
indication that the disposition of his claim would not have
been different had he received pre-AOJ adjudicatory notice
pursuant to section 5103(a) and § 3.159(b). Accordingly, any
such error is nonprejudicial. See 38 U.S.C. § 7261(b)(2).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2003). The RO has obtained the veteran's service medical
records and post service VA medical records. There is no
indication that additional relevant records exist.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2003). The appellant was afforded VA medical examinations
in October 1969, July 1984, November 1984, and July 1994.
The reports of examinations are in the claims file.
Therefore, the Board concludes that no further assistance to
the veteran is required.
After reviewing the record, the Board is satisfied that all
relevant facts with respect to the claim in the instant case
have been properly developed. Under the circumstances of
this case, a remand would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit to flowing to the veteran are
to be avoided). Moreover, given the completeness of the
present record which shows substantial compliance with the
notice and assistance provisions of the new legislation the
Board finds no prejudice to the appellant by proceeding with
appellate review. Bernard v. Brown, 4 Vet. App. 384, 393
(1993).
The RO provided the appellant with the pertinent evidentiary
development that was codified by VCAA and the implementing
regulations. In addition to performing the pertinent
development required under VCAA and the implementing
regulations, the RO notified the appellant of his right to
submit evidence. It would not breach his rights under VCAA
and/or the implementing regulations for the Board to proceed
to review the appeal.
ORDER
Service connection for PTSD is denied.
_________________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).